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David F. Herr

Longtime Maslon litigator, prolific author David Herr dies

Longtime Maslon partner David F. Herr, regarded as a giant of Minnesota law for his decades of highly respected work as an appellate lawyer and complex case litigator, legal educator and prolific author on the law, has died. He was 71.

Herr’s passion for the law motivated him to seek to improve the profession and the practice, said Roger Haydock, a professor of law at Mitchell Hamline School of Law. Haydock was a friend of Herr’s since Herr’s days as a student at the former William Mitchell College of Law in the mid-1970s. Herr later served the school as an adjunct professor for more than 30 years.

“He has an exceptional history of being this consummate lawyer,” Haydock said. “I imagine every courtroom in this state and every law firm in this state has books that David has written, that lawyers rely on. There are maybe over 1.2 million lawyers in American and most of them are litigators. A majority of them have used one or more of his books over the decades, so he’s got this remarkable legacy that way.”

Diagnosed with ALS

Herr, who had been diagnosed with amyotrophic lateral sclerosis (ALS), or Lou Gehrig’s disease, died on Dec. 22. A memorial is planned for the spring at House of Hope Presbyterian Church in St. Paul. Herr this month was named a 2021 Attorney of the Year for Outstanding Service to the Profession by Minnesota Lawyer. In recognition of the contributions of Herr, a native of the capital city, St. Paul Mayor Melvin Carter proclaimed Dec. 3 as David F. Herr Day. A Lifetime Achievement Celebration took place in his honor that day.

In more than 43 years of practice, Herr wrote more than 15 significant works on state and federal law while mentoring hundreds of lawyers and helping to draft and amend the rules governing civil practice as a longtime reporter for several Minnesota Supreme Court advisory committees.

Minnesota Supreme Court Justice G. Barry Anderson referred to Herr as “one of Minnesota’s legal giants” for his “enormous contributions to the practice of law and the state of Minnesota.” Herr’s advisory committee efforts included serving as reporter for the General Rules of Practice for the District Courts committee from July 1982 until the present.

“The thread that goes through everything that he did was a sense of professionalism,” Anderson said in a transcript of his comments during the event celebrating Herr’s achievements. “The preamble to the (American Bar Association’s) Model Rules of Professional Conduct states that in all professional functions a lawyer should be competent, prompt and diligent; I think that’s a pretty good testimony to who David Herr is.”

‘Unparalleled’ service to Supreme Court committees

Eric Magnuson, former chief justice of the Minnesota Supreme Court and now a partner at Robins Kaplan, said Herr’s work on the court’s rules committees “is, as far as I know, completely unparalleled.”

“Few lawyers have contributed as much over their careers as David did through his selfless service to the bench and to the bar,” Magnuson said. “He was the reporter for most of the major advancement in the civil rules, both in the trial court and the appellate courts, for the past three decades. … David really loved the law and he loved helping the law work the way it was supposed to work.”

Herr’s writing mantra: ‘Make this useful’

While Magnuson would “really get into the weeds on things,” when they wrote together, Herr would “drag me back closer to the surface and say, ‘That’s really interesting that you know every jot and tittle of this rule. But we’ve got to make this practical, we’ve got to make this useful for the practitioner. That was his mantra, we’ve got to make this useful.’”

Herr served on Maslon’s Governance Committee for six years and as its general counsel for more than 25 years in his four decades of practice with the firm.

“David made Maslon a better place through the quality of his lawyering, his role in firm management, and his unending support of younger lawyers in the firm,” Mike McCarthy, chair of the firm’s Governance Committee, said in a release. “The accolades he received for his lawyering speak for themselves, but the better measure of his contributions may be the lasting mark he left on those who had the good fortune to work with him.”

Herr graduated from William Mitchell College of Law in 1978. A Hennepin County judge impressed with Herr’s work as a student attorney advised a firm he had applied to, to “Hire David Herr.” Herr joined Maslon three years later, regularly arguing cases in the Minnesota appellate courts and 8th U.S. Circuit Court of Appeals. He served as president of the American Academy of Appellate Lawyers and as president of the Academy of Court Appointed Masters, among other leadership roles he took to advance the legal profession.

Herr wrote several editions of the “Annotated Manual for Complex Litigation Fourth” and the “Multidistrict Litigation Manual: Practice before the Judicial Panel on Multidistrict Litigation,” published by Thomson West; co-authored the Appellate Rules Annotated, Minnesota Practice Series, the leading treatise on Minnesota appellate law and practice; co-authored the Minnesota Appellate Procedure Summary Guide and the Minnesota Evidence Rules Summary Guide for Minnesota CLE; was the original 1994 author and editor and subsequently continued to edit several editions of the Eighth Circuit Appellate Practice Manual for Minnesota CLE; and co-authored the Summary of Eighth Circuit Appellate Procedure for Minnesota CLE.

Herr co-founded and served on the board of the Minnesota Supreme Court Historical Society; chaired the United Hospital Foundation board; and served on the board of directors of the Innocence Project of Minnesota.

Focus on mentoring

As a mentor, Herr often invited attorneys to collaborate on articles, books and court cases. Maslon partner Erica Holzer, whom Herr mentored, said Herr often stepped aside to afford opportunities to newer or younger attorneys.

“He really cared about teaching attorneys how to be good lawyers,” Holzer said. “He was just incredibly generous in that regard. I would say probably because that is what he viewed as part of his responsibility as a as a lawyer, which I hope to carry forward.”

Mitchell Hamline President and Dean Emeritus Eric Janus said Herr’s legacy combines the writing and the advocacy of a lawyer “who loves the craft of lawyering and was dedicated to sharing his knowledge and his expertise broadly.”

Herr’s motivation to do so, Janus said, stemmed from “a dedication to the profession and to raising the level of professionalism among layers and also dedication to the community, understanding that lawyers are a big contributor to the quality of civic life in our community and the higher the level of professionalism and skill, the better.”

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